Supreme Court to Hear Case on Political Speech

The U.S. Supreme Court is shown from the dome of the U.S. Capitol on Dec. 19, 2013 in Washington, D.C. (Photo by Win McNamee/Getty Images)

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The Supreme Court will decide whether a lawsuit challenging Ohio’s ban on false speech in political campaigns can proceed, even though the plaintiff has not been charged with violating the measure.

The case, likely to be heard in March or April, was one of eight the justices accepted on Friday. And like an increasing share of the court’s docket, it relates, at least indirectly, to the Affordable Care Act.

Ahead of the 2010 midterm elections, an antiabortion group called the Susan B. Anthony List announced plans for a billboard campaign against Rep. Steve Driehaus (D., Ohio) based on his vote for the health care law. They were to read, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” But they never were posted after Mr. Driehaus threatened legal action against the billboard company.

The one-term congressman also filed a complaint with the Ohio Elections Commission contending the accusation violated the law banning false statements regarding candidates. After a commission panel found probable cause that the Susan B. Anthony List either knew its claim was false or made it with reckless disregard of its accuracy, the group filed suit in federal district court contending the state law violated the First Amendment’s free-speech guarantee.

Mr. Driehaus lost his race for re-election, however, and dropped his complaint with the elections commission. The district judge then dismissed the Susan B. Anthony List’s lawsuit as moot, among other grounds. The Sixth U.S. Circuit Court of Appeals, in Cincinnati, affirmed that decision in May 2013.

The Susan B. Anthony List appealed to the Supreme Court, arguing that even though it was not convicted under the Ohio false-statement law, the potential for prosecution chilled free speech in the place where it matters most—the political arena.

The group asserts that its claim is accurate, based on its view of Affordable Care Act provisions that help low-income Americans purchase private insurance policies that may cover abortion. But in any event, it argues that the First Amendment provides a wide berth for political speech, even if false, in order to protect robust debate.

In its Supreme Court petition, the Susan B. Anthony List says that the Sixth Circuit decision conflicts with those of other federal appeals courts, which would permit a pre-enforcement challenge based on free-speech grounds to proceed under similar circumstances.

The state of Ohio disagrees, noting that the preliminary steps the elections commission took were a long ways away from establishing the “credible threat of prosecution” a plaintiff must demonstrate to proceed with a pre-enforcement challenge. Had the case proceeded, the state says, the commission could have referred the Susan B. Anthony List to a county prosecutor, who would have had the last word on whether to prosecute.

Besides, Ohio says, the state law only prohibits the most egregious lies—those that one knows are false or makes with reckless disregard for their truth or falsity. Since the Susan B. Anthony List asserts it only plans to make truthful statements, the state argues the group has no grounds to challenge a law that bans only lies.

The issue before the Supreme Court involves the Susan B. Anthony List’s standing to pursue its lawsuit, and not whether the Ohio false-statement law is itself unconstitutional.

But the Supreme Court’s conservative and liberal wings have largely united in defense of traditional free-speech rights, going so far in 2012 to strike down a federal law prohibiting false claims of earning military decorations such as the Medal of Honor.

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